ORDER
N.N. Sharma, J.
1. This revision is directed against order dt. 17-7-1981 recorded by Sri I. P. Mital, Sessions Judge, Tehri Garhwal who allowed criminal appeal No. 26 of 1980 preferred by opposite parties Pujan Singh and Yogendra Kumar Jain and set aside their convictions under Section 411 of the Penal Code and sentence of three years rigorous imprisonment and fine of Rs. 20,000/- and in default of payment of fine further rigorous imprisonment for a period of six months as awarded by Sri Rati Ram, Chief Judicial Magistrate, Tehri on 6-10-1980 in case No. 293 of 1979 D.
2. Learned Sessions Judge further reversed the order of the Trial Magistrate about the disposal of property and directed ornaments Exts. 1 to 4 to be forfeited to the State and the remaining ornaments to be returned to Yogendra Kumar Jain Opposite party No. 3 from whose possession they were seized by the police.
3. This revision was admitted by my learned predecessor-in-office Brother J. M. L Singh, J. on 18-10-1981 only against the order for disposal of property as recorded by the appellate Court. This revision was not admitted against the portion of the order regarding acquittal of opposite parties 2 and 3 nor any argument was advanced before me in this revision assailing that order of acquittal.
4. A theft is alleged to have taken place on 31-10-1978 in between 11 and 12 P.M. in village Supana P.S. Kirti Nagar, District Tehri Garhwal in the houses of revisionists, while they were enjoying a Ram Leela performance. The theft was detected by Smt. Gundra Devi and it was found by the villagers that the locks of the house of revisionists were broken open. A report about the theft was lodged at police station concerned on 31-10-1978 at about 4 A.M. by Govind Singh. None was named as an accused in that report.
5. Investigator Sri S. N. Sharma arrested Puran Singh on 31-10-1978 and recovered ornaments Exts. 1 to 4 from his possession at 11-45 A.M. Recovery memo was drawn on the spot.
6. Interrogation of Puran Singh led to the implication of Yogendra Kumar Jain co-accused. Puran Singh pointed out the shop of Yogendra Kumar Jain in Srinagar, where he had pawned the remaining ornaments. Yogendra Kumar handed over a bundle containing the ornaments other than Exts. 1 to 4 and alleged that these ornaments were pawned with him by Puran Singh for Rs. 2000.00. On completion of investigation both the accused were sent up. Learned trial Court convicted and sentenced the accused as given above.
7. Learned appellate Court found that prosecution failed to prove that the disputed ornaments were stolen property, and so the conviction and sentence were set aside. Opposite parties 2 and 3 were acquitted. As Puran Singh denied the recovery of ornaments Exts. 1 to 4 from his possession, so these were ordered to be forfeited to the State and the remaining ornaments were ordered to be returned to Yogendra Kumar Jain opposite party No. 3 from whose possession these were recovered by police.
8. Aggrieved by this order this revision has been filed. On behalf of revisionists it was argued that these ornaments belonged to the revisionists from whose houses these were stolen; the order for returning the ornaments to Yogendra Kumar or forfeiture of Exts. 1 to 4 was bad as such order was not recordable without hearing the revisionists, who as owners of the ornaments were entitled to a notice, as the aforesaid order operates to their prejudice. In this connection reliance was placed upon State Bank of India v. Rajendra Kumar Singh which reads as below:
It is true that the statute does not expressly require a notice to be issued or a hearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice, there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order of return of the seized property. Thus an order of the High Court reversing the order of the Sessions Court directing disposal of property under Section 517, without giving notice to the person to whom the property is directed to be delivered by the Sessions Court, is vitiated by law.
9. It appears that in that case currency notes of the value of Rs. 21,000/- were seized by Madhya Pradesh Police from Beawar Branch of State Bank of India in the course of investigation of a case under Sections 420, 406 and 120B of the Penal Code registered at police station Thukoganj Indore against Kishan Gopal, the third respondent. Third respondent Kishan Gopal was alleged to have come in possession of a sum of Rs. 1,50,000/- in Government Currency Notes by cheating the first and second respondents. The appellant maintained that it came in possession of the said currency notes in the usual course of business through the Bank of Rajasthan Limited and partly through the Mahalaxmi Mills Company Limited without any knowledge that the said currency notes had been the subject matter of an offence.
10. The accused in that case were acquitted by the Sessions Judge, but were convicted by the High Court.
11. Pending the trial the State Bank who was neither an informant nor an accused applied in the Court of Sessions Judge who delivered the currency notes to the Bank from whose possession the notes had been seized by the police, vide Section 517 Sub-clause (1) of the old Cr. P.C. of 1898 which corresponded to Section 452 of the new Cr. P.C. Act No. 2 of 1974 in a miscellaneous case which was initiated on this application by the State Bank. The currency notes were ordered to be returned to the appellant Bank by Addl. Sessions Judge.
12. The High Court of Madhya Pradesh allowed Criminal Appeal No. 205 of 1962 and convicted the accused, the informant wanted the delivery of the currency notes. That application was allowed by the high Court. That order was set aside by the Supreme Court on the ground that in view of the principles of natural justice State Bank appellant should have been afforded an opportunity of being heard before ordering the delivery of the currency notes to the informant respondents 1 and 2.
13. It is, thus, obvious from a perusal of this case that it was a case of conviction in which the accused were found guilty of the offences and the currency notes were alleged to have been the subject matter of the offences under Sections 420 , 406 and 120B of the Penal Code.
14. The order was recorded in a separate proceeding and not during the course of trial or appeal.
15. In the instant case there is a definite finding of fact recorded by appellate Court which is binding in revision and it shows that the disputed ornaments were not proved to be stolen property; prosecution failed to prove the dishonest retention of the ornaments by the accused and so the ornaments other than Exts. 1 to 4 were ordered to be returned to Yogendra Kumar from whose possession these ornaments were recovered; Puran Singh did not claim ownership or possession of Exts. 1 to 4 and so these were ordered to be forfeited to the State.
16. Section 452 of the Cr. P.C. reads as below:
Section 452(1) When an inquiry or trial in any criminal Court is concluded the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) An order may be made under Sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under Sub-section (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under Sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of Sub-section (2), an order made under Sub-section (1) shall not be carried out for two months or when an appeal is presented, until such appeal has been disposed of.
(5) In this section, the term “property” includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.
17. Thus, it is obvious that in order to attract this section it is essential to establish (1) that the property has been produced before the Court or is in its custody; (2) that property must be the subject matter of an offence which appears to have been committed; (3) or which has been used for the commission of an offence. In the instant case it is obvious that according to the findings of the Sessions Judge this property was not the subject matter of any offence. It could not be established by prosecution that it was stolen property. The prosecution further failed to prove that the retention of this property by opposite party No. 3 was dishonest, so as to attract Section 411 of the Penal Code. On these findings it is obvious that Section 452 aforesaid does not come into play. Under such circumstances while disposing of the appeal it was perfectly open to the appellate Court to have ordered its return to the person from whose possession it had been recovered. Since Puran Singh opposite party No. 2 did not admit the recovery of ornaments Exts. 1 to 4 from his possession and Exts. 1 to 4 were not proved to be stolen property, so these were ordered to be forfeited to the State.
18. It is further significant to note that Section 452 as given above does not require the issue of any notice to any party by the Court while ordering the disposal of that property simultaneously in the judgment of the criminal case. In such cases it is not possible to argue that the Court should have given a separate notice to the parties to show cause in respect of the disposal of said property. However, if an application is made after some lapse of time in that event it is proper on general principles of law and principles of natural justice that the party adversely affected by the proposed order to have notice of such an application. It has been shown above that there has been no separate proceeding in this case and so no notice to the revisionists was essential prior to the recording of final order by the Court vide Deopujan Mahto v. Kukur Ahir AIR 1940 Pat 198 : 41 Cri LJ 559.
19. In Sita Ram v. State it was held that in a case under Section 411 of the Penal Code where the Court finds that no offence had been committed and the accused were acquitted, Section 517 had no application and consequently there was no discretion in the Court to allow or disallow the application of the accused for restoration of the property to him.
20. It was further held that normally order which should be recorded in such cases even if Section 517 of the Code was applicable was that the property must be returned back to the possession from which it came. Similar view was reiterated in N. Madhavan v. State of Kerala . Thus, it is obvious that while recording the impugned order learned Appellate Court did not depart from the salutary rule of practice that the property should be restored to the person from whose possession it was seized.
21. In Pushkar Singh v. State of Madhya Bharat the accused stood their trial for offences under Sections 449 and 372 of the Gwalior Penal Code. It was held by the trial Court that no offences were proved against the accused and the sum of money recovered from the possession of accused Pushkar Singh must be returned to him after expiry of the period of appeal. The order was upheld by the Session Judge. However, application by the complainant in revision by High Court was allowed and a sum of Rs. 463/- was ordered to be awarded to the complainant and not to Pushkar Singh. The order was struck down and the order of Magistrate was restored by the Supreme Court.
22. Thus, it has been shown above that none of these ornaments was proved to
be stolen property Puran Singh opposite party No. 2 did not lay claim to Exts. 1 to 4 and Yogendra Kumar Jain from whose possession the remaining ornaments were recovered has been found not guilty and so the aforesaid ornaments could be validly returned to him. Since this order was recorded at the time of disposal of appeal, so it cannot be faulted for want of notice.
23. In the result the revision is dismissed. Interim order dt. 18-10-1981 is vacated.